V. ENFORCING THE ORDER
A. CONTEMPT PROCEEDINGS
The traditional remedy for intentionally violating an injunction is a contempt of court proceeding. There are two forms of contempt proceedings: civil (brought within the underlying civil proceeding) and criminal (brought by the Attorney General, who will be responsible for prosecuting the proceeding). Typically, criminal contempt requires proof of “public defiance” of the order. The elements of the offences are the same, although there are differences in sentencing options, as well as the stigma associated with the proceeding.
A party commits the offence of contempt by the “intentional doing of an act which is in fact prohibited by the order.” The moving party must establish that:
1. The contemnor had personal service or knowledge of the order; and
2. the contemnor “deliberately or wilfully or knowingly did some act that was designed to result in the breach of a court order.”
To establish a breach, the contemnor need not have intended to breach the order or put themselves in contempt. The moving party need only prove the contemnor wilfully did some act, which resulted in the breach of the order.87 Good faith belief that an order is constitutionally invalid or is likely to be set aside on appeal is not grounds to refuse to comply with a court order. The proper procedure to attack an order issued erroneously, even if it is an ex parte order, is to apply to the court to vary or vacate the order. As the Ontario High Court of Justice put it in Ontario (Ontario Securities Commission) v. Gaudet:
[O]ne could not ignore an order of this court simply because one held the opinion that it was ineffective on constitutional grounds, or on any other grounds. The order stood, and must be obeyed, until it was reversed on appeal, or an equally effective order was secured to the effect that it need not be obeyed. If that were not so, any order of the court which on its face was plainly directed to everyone could be disobeyed by those who held the opinion that they were not subject to it. Thus, the mere opinion, which may be wrong, elevates he who holds it to the level of the court, and wipes the order off the record. In my opinion, it is not only novel, it is fallacious. The proper way to establish, or seek to establish, that the prohibition was not effective was on an application to this court for leave.88
The purpose of a contempt finding is not simply to provide a remedy to the moving party, but to uphold the dignity of the court and protect the proper administration of justice.89
As a practical matter, however, a private party who seeks an injunction may not have the preservation of the rule of law as its overriding concern when considering whether to bear the time and expense to bring contempt proceedings. Retroactive punishment for breaching an injunction order does not achieve the objective of preventing the enjoined behaviour. Thus, except perhaps in cases of repeated and ongoing acts of civil disobedience, where punitive measures may be necessary to prevent defendants from repeating their actions (specific deterrence) and to deter others (general deterrence), contempt proceedings may be an unnecessary expense for a private party to bear. Accordingly, where the practical objective of allowing the necessary work to be completed can be achieved through other means, that may be preferable. In this regard, enforcement orders, which specifically authorize law enforcement officials to take measures to enforce an injunction, are increasingly becoming the predominant means of achieving that result.
B. ENFORCEMENT ORDERS
1. PROCEDURAL CONSIDERATIONS
As noted earlier, law enforcement agencies have adopted a policy of non-intervention in respect of civil disobedience until a civil injunction has been granted. Even after an injunction is granted, however, further steps are often required before police will typically begin making arrests. Specifically, in non-violent situations, law enforcement officials will generally refrain from arresting individuals who violate the injunction without an additional “enforcement order” that specifically authorizes them to enforce the injunction.
Until recently, such enforcement orders were not usually granted at the same time as the injunction order itself. A two-step process was normally required: it was necessary to first obtain the injunction, serve it on the protesters, and then go back to court with a second application for an enforcement order with evidence that the injunction was not being obeyed. The second application required affidavit evidence concerning the service of the order and the protesters’ refusal to comply with its terms.
